European Court of Human Rights Affirms Absolute Ban on Torture

By Anthony Dworkin

The European Court of Human Rights released an important ruling on Thursday, February 28, affirming the absolute nature of the right against torture and inhuman treatment in the European human rights system.  Delivering judgment in the case of a Tunisian resident of Italy who faced deportation as a suspected terrorist, the Court rejected the argument that the risk of torture he faced in his home country should be balanced against the risk he was alleged to pose to national security in Italy.

The case is significant for the ruling itself and for the light it sheds on the approach that some European governments have taken to counter-terrorism.  The British government, in particular, which joined the case as a "third-party intervener", hoped to establish a precedent that in the face of international terrorism there should be a new understanding of the ban on torture in the European Convention on Human Rights.  The British effort shows that even though European states reject the notion that the fight against terrorism is a "war", they are still anxious to overturn traditional peace-time interpretations of the law to give themselves greater freedom to fight against terrorists.  The European Court's ruling should be understood as drawing clear limits to that effort of relaxing traditional restraints as part of the counter-terrorist struggle.

The prohibition on torture is contained in Article 3 of the European Convention on Human Rights (ECHR), which states that, "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." In an earlier judgment (the Chahal case from 1996) the Court of Human Rights had said this right included in all cases a right not to be expelled or extradited if you would end up in a country where you ran a real risk of being subjected to torture or inhuman treatment.  The United Kingdom, along with other European states, has long wished to modify this ruling in the case of terrorist suspects, so that the country wishing to deport them could balance the risk of torture they faced against the risk they posed to other people in the country that was trying to expel them.

The case decided this week was brought by Nassim Saadi, who had served time in Italy for criminal conspiracy and was alleged by Italian authorities to have terrorist links.  He had already been convicted in absentia in Tunisia of terrorism-related offences, and claimed he would be likely to face torture if he was returned to Tunisia, as there is plentiful evidence that many other terrorist suspects have been tortured there.

In upholding Saadi's right not to be deported to Tunisia, the Court recognised the "scale of the danger of terrorism today and the threat it presents to the community," but said this could not be allowed to "call into question the absolute nature of Article 3." The Court also dismissed the U.K. argument that there was a significant distinction between treatment inflicted by a state that was a party to the Convention and treatment that might be inflicted by another state, and that in the second case the risk should be "weighed against the interests of the community as a whole".  Instead it ruled that the obligation not to expel or extradite someone who would face a real risk of torture in the receiving state was not subject to any exceptions, no matter how "undesirable or dangerous" the conduct of the person involved.

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Torture

Related Links:

Case of Saadi v. Italy: Judgment

Grand Chamber, European Court of Human Rights

February 28, 2008

European Convention on Human Rights

EU Governments Should Welcome Today's ECHR Ruling on Torture

Anthony Dworkin

European Council on Foreign Relations

February 28, 2008

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